Kerala High Court
Anoop Khan vs State Of Kerala on 24 January, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 1 :-
2025:KER:5659
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
FRIDAY, THE 24TH DAY OF JANUARY 2025 / 4TH MAGHA, 1946
CRL.A NO. 1217 OF 2018
CRIME NO.775/2010 OF PARIPPALLY POLICE STATION, KOLLAM
AGAINST THE JUDGMENT DATED 21.12.2017 IN SC NO.327 OF
2011 OF SESSIONS COURT, KOLLAM
APPELLANT/ACCUSED:
BINU
AGED 29 YEARS, S/O.THANKACHAN, PADINJAREYIL VEEDU,
KALATHIPACHA, PALLICKAL DESAM, PILLICKAL VILLAGE,
KOLLAM.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM-682031.
OTHER PRESENT:
SRI RANJITH T R, SR. PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
22.01.2025, ALONG WITH CRL.A.406/2018, 1092/2018, THE COURT
ON 24.01.2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 2 :-
2025:KER:5659
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
FRIDAY, THE 24TH DAY OF JANUARY 2025 / 4TH MAGHA, 1946
CRL.A NO. 406 OF 2018
CRIME NO.775/2010 OF PARIPPALLY POLICE STATION, KOLLAM
AGAINST THE JUDGMENT DATED 21.12.2017 IN SC NO.327 OF
2011 OF SESSIONS COURT,KOLLAM ARISING OUT OF THE
ORDER/JUDGMENT DATED IN CP NO.2 OF 2011 OF JUDICIAL FIRST
CLASS MAGISTRATE COURT, PARAVUR
APPELLANT/3RD ACCUSED:
AJAYAN
AGED 29 YEARS, S/O.THULASEEDHARAN,
POOVANATHUMPOIKA VEEDU, KALATHIPACHA, PALLICHAL
DESOM, PALLICHAL VILLAGE, KOLLAM DISTRICT.
BY ADVS.
SRI.RENJITH B.MARAR
SMT.LAKSHMI.N.KAIMAL
SRI.V.KRISHNADAS (K-541)
SMT.SINDHU K.S.
SRI.VIMAL VIJAY
Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 3 :-
2025:KER:5659
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM-682031.
OTHER PRESENT:
SRI RANJITH T R, SR. PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
22.01.2025, ALONG WITH CRL.A.1217/2018 AND CONNECTED CASES,
THE COURT ON 24.01.2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 4 :-
2025:KER:5659
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
FRIDAY, THE 24TH DAY OF JANUARY 2025 / 4TH MAGHA, 1946
CRL.A NO. 1092 OF 2018
AGAINST THE JUDGMENT DATED IN SC NO.327 OF 2011 OF
SESSIONS COURT,KOLLAM ARISING OUT OF THE ORDER/JUDGMENT
DATED IN CP NO.2 OF 2011 OF JUDICIAL FIRST CLASS MAGISTRATE
COURT, PARAVUR
APPELLANT/ACCUSED NO.1:
ANOOP KHAN
AGED 30 YEARS
S/O AYOOB KHAN, MULAMPALLY HOUSE, PALLICKAL DESOM,
PALLIKKAL VILLAGE, KOTTAYAM DISTRICT.
BY ADVS.
P.K.VARGHESE
NAMITHA K.S.(K/2262/2022)
DEVIKA K.R.(K/3339/2023)
CHIPPY AMBUDAS(K/004044/2023)
LLOYD JOHN(K/1875/2021)
Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 5 :-
2025:KER:5659
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM, KOCHI-682031.
OTHER PRESENT:
SRI RANJITH T R, SR. PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
22.01.2025, ALONG WITH CRL.A.1217/2018 AND CONNECTED CASES,
THE COURT ON 24.01.2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 6 :-
2025:KER:5659
RAJA VIJAYARAGHAVAN V,
&
P.V.BALAKRISHNAN,JJ.
-------------------------------------.
Crl.Appeal Nos.406, 1092 & 1217 of 2018
---------------------------------
Dated this the 24th day of January 2025
COMMON JUDGMENT
P.V.BALAKRISHNAN,J
Crl.Appeal No.1092 of 2018 is filed by the first accused,
Crl.Appeal No.1217 of 2018 is filed by the second accused and
Crl.Appeal No.406 of 2018 is filed by the third accused
challenging their conviction and sentence imposed under Section
302 r/w Section 34 IPC by the Sessions Court, Kollam in SC
No.327 of 2011.
Prosecution Case
2. On 8/7/2010 at about 9.30 pm, the accused three in
number in furtherance of their common intention, at a place near
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Nettayam junction, attacked deceased Anoop with dangerous
weapons such as a machine saw chain and sword and inflicted
serious injuries upon him. The first accused, by using the sharp-
edged portion of the machine saw chain, hit the deceased on his
head, face, and back, and the second accused inflicted stab
injuries on the left and right side of his chest and abdomen
thereby, causing serious injuries. At that time, the third accused
stamped Anoop and slapped him on his body. Later, while
undergoing treatment in the Medical College hospital, Anoop
succumbed to his injuries on 9/7/2010 at about 4.25 am. Hence,
the prosecution alleges that the accused have committed an
offence punishable under Section 302 r/w Section 34 IPC.
Proceedings in the trial court.
3. In order to prove the prosecution case, PW1 to PW24
were examined and Exhibits P1 to P32 and Ext.C1 documents
and MO1 to MO14 were marked. The accused also marked
Exts.D1 to D11 contradictions and documents through the
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prosecution witnesses. On questioning under Section 313 Cr.P.C.,
all the accused denied the incriminating circumstances brought
against them in evidence and contended that they are innocent.
The first accused also stated that, it is PW4 and his henchmen
along with the father of the deceased, who have colluded
together and have implicated him falsely in this case. From the
side of the accused, no oral or documentary evidence was
adduced. The trial court, on an appreciation of the evidence on
record and after hearing both sides, found the accused guilty and
convicted them under Section 302 r/w Section 34 IPC. After
hearing both sides and considering Exts.D12 to D14 documents
produced by the first accused, the trial court sentenced the first
accused to undergo life imprisonment with a direction to serve a
jail sentence of 25 years without any remission and also to pay a
fine of Rs.50,000/- under Section 302 r/w section 34 IPC. In case
of default, the first accused was ordered to undergo simple
imprisonment for two more years. The second accused was
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sentenced to undergo imprisonment for life with a direction that
he shall undergo jail sentence for 20 years and shall pay fine of
Rs.25,000/- under Section 302 r/w Section 34 IPC. In case of
default, the second accused was ordered to undergo simple
imprisonment for a period of one year. The third accused was
sentenced to undergo imprisonment for life and to pay a fine of
Rs.25,000/- under Section 302 r/w Section 34 IPC. In case of
default, he was ordered to undergo simple imprisonment for a
period of one year. The fine amount, if realized, was ordered to
be paid to the wife and children of deceased Anoop.
A conspectus of the prosecution evidence
4. PW1 is the person who lodged Ext.P1 FIS. He has not
witnessed the incident and had lodged the FIS on the basis of a
telephonic information received by him at 5 am on 9/7/2010.
5. PW2 is an eyewitness to the incident. He deposed that on
8/7/2010 at about 8 p.m he had reached the house of Biju(PW4)
for collecting wages. PW3 (Nihaz) and CW2 (Nisam), who were
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also employees of PW4, were present at that time. While they
were watching TV in the house of PW4 at about 9.30 pm, they
heard a shriek from Nettayam junction. All four ran towards that
place and there, he saw the deceased Anoop in a crouched
position and the first accused hitting him using the chain of a saw
machine. Blood was oozing out from his head and body. When
Nisam (CW2) intervened, the first accused swung a sword
against him and PW4 caught hold of the first accused.
Subsequently, he took the victim in the autorickshaw of PW5 to
Safa Hospital, from where he was taken to the Medical College
hospital by the father of the victim and one Rajendran
Pillai(CW6). On the next day, at about 4.25 a.m, Anoop
succumbed to his injuries. He identified the chain used in the
attack and stated that the second and third accused were present
at the place of occurrence at the relevant time. In his cross-
examination, he stated that it was he along with Nisam(CW2)
and Nihaz (PW3) who had lifted the victim to the autorickshaw,
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and in that process, his shirt got drenched with blood. The
deceased did not talk with the doctors in Safa Hospital and
Medical College Hospital and only stated that he was having pain.
At that time, the victim was not in a condition to speak and while
going to the Medical College, he saw the victim answering some
queries put by Rajendra Pillai. In his re-examination, he stated
that sufficient light was available from the houses nearby and the
electric post, to witness the incident.
6. PW3 is another eyewitness to the incident. He deposed
that on 8/7/2010 at about 9.30 pm while he along with Nisam
(CW2) and Shaji (PW2) were watching TV in the house of PW4
Biju, they heard a cry from Nettayam junction and ran towards
there. There, he saw the deceased Anoop in a crouched position
and the first accused hitting him using the chain of a saw
machine. At that time, the second and third accused were also
present there. He identified the chain used by the first accused
and stated that he was not sure whether the other accused were
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possessing weapons. He also did not see who was possessing the
sword. The victim stated to him that the accused had assaulted
him and requested him to take him to a hospital. Subsequently,
the victim was taken to the hospital by PW2 in the autorickshaw
belonging to PW5. In his cross examination, Ext.D1 contradiction
was marked. He also stated that at the time when he saw the
victim, he was not even in a position to get up and was drenched
in blood. In his re-examination, he stated that MO2 is the sword
shown to him by the police.
7. PW4 is also another eyewitness to the incident. He
deposed that the incident took place at about 9.15-9.30 pm on
8/7/2010 at a place called Nettayam junction. He is residing near
to the place of occurrence and on the fateful day, while he along
with PW2, PW3 and Nisam (CW2) were watching TV, they heard a
scream at about 9.30 pm. All of them ran towards the place and
there, he saw the first accused hitting the deceased Anoop with a
chain used in a saw machine. The second and third accused were
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standing nearby. He and Nisam intervened and later, took the
victim in the autorickshaw of PW5 to the hospital accompanied by
PW2. He went to Safa Hospital on his bike and understood that in
the meantime, the victim had been taken to Medical College
hospital. He identified all the accused and the weapon used by
the first accused. As regards MO2, he stated that it was shown to
him by the police. He added that at the place of occurrence, light
was emanating from the electric post. In his cross examination,
Exhibits D2 and D3 contradictions were marked. He also stated
that when they reached the spot, other than the victim and the
accused, no one else was present.
8. PW5 deposed that Nisam (CW2) had approached him to
take the victim to the hospital and he had gone along with him to
Nettayam. From there he took the victim, who was lying prone
with blood all over his body, to the hospital. Nisam, one Ponnus
and another person who were present there lifted the victim into
his autorickshaw, and Ponnus and the other person accompanied
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the victim. On reaching the hospital, the doctor asked the victim
regarding the incident and at that time, the victim stated that the
henchmen of Biju had beaten him. In his cross-examination, he
stated that there was no light in the place other than the
headlight of the autorickshaw and he had seen the doctor taking
down the information given by the deceased. Ext.D4
contradiction was also marked from the side of the accused.
9. PW6 is a witness to Ext.P2 scene mahazar, PW7 is a
witness to Ext.P3 mahazar and the recovery of MO1. PW 9 is a
witness to Ext.P5 mahazar and seizure of MO3 and MO4 dresses
of the first accused. PW10 is a witness to Ext.P6 mahazar and
seizure of MO5 and MO6 dresses of the second accused. PW11 is
a witness to Ext.P7 mahazar and seizure of MO7 to MO9 dresses
worn by the deceased.
10. PW12 was the scientific assistant attached to FSL,
Thiruvananthapuram, who examined the material objects and
issued Ext.P8 report. She deposed that item Nos.10 to 14
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contained human blood belonging to 'Group O', item No.15
contained human blood and item Nos. 5, 6 & 16 contained blood,
which is insufficient for determining the origin and group. She
also stated that blood was not detected in other items.
11. PW 13 is a witness to Ext.P9 mahazar and recovery of
MO 10 and MO11 dresses of the third accused. PW14 is a witness
to Ext.P10 inquest report.
12. PW 15 is the father of the deceased. He deposed that at
about 9.30 pm on the fateful day, when he made a call to the
mobile phone of the deceased, someone attended it and asked
him to come to Safa hospital. When he reached Safa hospital, he
saw his son being taken in an ambulance to the Medical College
hospital. He along with Shaji and Rajendran Pillai accompanied
his son in the ambulance. While so, he saw Rajendran asking his
son about the incident and heard his son replying that the first
accused had hit him using the chain of a saw machine, the
second accused had stabbed him and the third accused had
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stamped him. When he reached the hospital, he told the doctor
about the information given by his son. His son died at 4.00-4.30
am on the next day. On 8/7/2010 at about 12 pm, the doctor had
handed over the dresses of his son, which are MO7 to MO9, and
he handed over the same to the police. During cross-
examination, Exts.D6 to D10 contradictions were marked by the
defence. He also stated that at about 7 pm on the fateful day, he
had seen all the accused together near the house of Biju (PW4)
and that while speaking to the doctor, he had not given the
names of the accused. He further stated that, at the time when
he reached the hospital, he was not aware of the names of the
accused and that it was subsequently after returning from the
hospital, he got the names from Rajendran and Shaji.
13. PW 16 is the village officer, who prepared Ext.P11 plan.
PW 18 is a witness to Ext.P14 mahazar and recovery of MO2. PW
19 is the SI, who recorded Ext. P1 FIS and registered Ext.P15
FIR.
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14. PW17 is the doctor, who conducted the post-mortem
examination of the deceased and issued Ext.P12 certificate. She
noted 40 ante-mortem injuries in the body of the deceased. She
opined that the cause of death is due to the injury sustained to
the head, chest and abdomen. She stated that injury Nos.1 to 17
are sufficient to cause death and injury Nos.1,2,4 to 6 and 8 to
13 can be caused by MO1. Injury Nos.14 to 17 are penetrating
injuries and they are independently sufficient to cause death. She
further stated that injury Nos.14 to 17 can be caused by MO2.
15. PW20 is the investigating officer in this case. He
deposed that he took over the investigation on 9/7/2010 and at
about 1.30 pm prepared Ext.P10 inquest report. At 4.30 pm, he
visited the site along with the scientific assistant and fingerprint
expert, and prepared Ext.P2 scene mahazar. At about 6.30 pm he
collected the articles handed over by the expert, as per Ext.P17
mahazar, and forwarded the same to the court as per Ext.P18
property list. On 10/7/2010 at about 4 pm, he seized the dresses
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worn by the deceased as per Ext.P7 mahazar. On 12/7/2010, he
arrested the accused after preparing Ext.P20 series and Ext.P21
series documents. Thereafter, on the basis of Ext.P3(a)
confession of the first accused, he recovered MO1 by preparing
Ext.P3 mahazar. On the basis of Ext.P14(a) confession of the
second accused, he recovered MO2 after preparing Ext.P14
mahazar. The dresses worn by the first, second and third accused
during the commission of the crime were also seized as per
Ext.P5, P6 and P9 mahazars respectively. All the articles thus
seized were produced before the court as per Ext.P24 and
Ext.P25 series property list. In his cross examination, he stated
that the electric post is situated 16 metres away from the place
of occurrence.
16. PW22 is the police officer, who conducted further
investigation in this case. He stated that he had collected Ext.P4
case records of the victim, and had prepared and sent Ext.P29
forwarding note to the court. PW24 is the police officer who
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completed the investigation and filed the charge sheet.
Contention of the appellants
17. Adv.P.K.Varghese, Adv.Ralph Reti John (Legal Aid) and
Adv. Renjith B.Marar appearing for the respective appellants
contended that, even if the prosecution evidence is accepted in
toto, there are no materials to find the accused guilty. They
submitted that the evidence of the eyewitnesses are not credible
and they are interested witnesses in as much as their attempt is
to shield the PW4, who is the mastermind of this crime. They
contended that, there is absolutely no evidence to inculpate the
second and the third accused in the crime and the identification
of the accused by the eyewitnesses is doubtful in the absence of
light at the place of occurrence. They argued that the recoveries
effected by the prosecution are shabby and have no legal
sanctity, since even the information allegedly received from the
accused, which led to the recovery, have not been proved. They
submitted that scientific evidence is also lacking to connect the
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accused with the crime and the prosecution has suppressed
material evidence by not examining Rajendran and the doctor in
Safa hospital. They further, by relying upon the evidence of PW5,
contended that the statement given by the deceased to the
doctor immediately after the incident would show that it is PW4
and his henchmen who have attacked him and the same is not in
tune with the other evidence let in by the prosecution. The
learned counsel for the first accused added that, since there is no
evidence to show that at the time when the serious injuries were
inflicted upon the victim, the first accused was present in the
scene, the offence under Section 302 is not attracted against him
and utmost, only Section 326 may lie. The learned counsel for
the second and the third accused also added that accused Nos. 2
and 3 cannot be roped in under Section 34 IPC since there is no
evidence to show that they were sharing their mind with the first
accused.
Contention of the Prosecutor
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18. Learned senior Public Prosecutor Adv.Ranjith.T.R,
contended that the prosecution has proved its case beyond
reasonable doubt and there are no grounds to interfere with the
impugned judgment.He argued that the evidence of PW2 to PW4
is credible and cogent and are supported by the recovery of the
weapons made at the instance of the accused. He also argued
that scientific evidence adduced would reveal the presence of
blood in MO1 and MO2 and in the dresses worn by the first
accused at the time of occurrence. He submitted that the
evidence of PW5 is not contrary to the other evidence let in by
the prosecution, since the accused themselves are the employees
of PW4. He further submitted that the statement given by the
deceased to Rajendran was overheard by PW15 and the same
clearly shows that it is the accused who have committed the
crime. Hence, he prayed that these appeals may be dismissed.
Analysis of the evidence
19. In the present case, there is not much dispute
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regarding the fact that the death of Anoop is due to homicide.
The evidence of PW17 coupled with Ext.P12 postmortem
certificate shows that the victim has suffered 40 ante-mortem
injuries, out of which 9 of them are incised wounds on the vital
parts of the body such as abdomen, chest and head,etc. PW17
has categorically stated that injury Nos.14 to 17, which are
penetrating wounds and which can be caused by MO2, are
independently sufficient to cause the death. She has also stated
that injury Nos. 1,2, 4, to 6 and 8 to 13, which can be caused by
MO1, are also sufficient to cause death. According to her, the
cause of death of Anoop is due to the injuries sustained by him in
head, chest and abdomen. Ergo, in the light of the afore
evidence, we have no hesitation to find that the death of Anoop
is by homicide.
20. The prosecution case is that it is the accused who, in
furtherance of their common intention, have attacked the
deceased with dangerous weapons such as the chain used in a
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saw machine and sword, and has killed him. It is alleged that the
first accused has, by using the chain of a saw machine, hit the
deceased repeatedly, the second accused has, by using a sword,
stabbed him on his chest and abdomen and the third accused has
beaten and stamped him causing serious injuries resulting in his
death. In order to prove the afore version, the prosecution is
heavily relying upon the evidence of PW2 to PW4 who are the
eyewitnesses to the incident. An appraisal of the evidence of PW2
would show that when he reached the spot on hearing the cries,
he had seen the deceased sitting crouching, with his hands on his
head and the first accused repeatedly hitting him using the chain
of a saw machine which he identified as MO1. The victim was not
even in a position to stand up and he was drenched in blood. His
evidence is also to the effect that, at that time the second and
the third were present there. The evidence of PW3, who reached
the spot along with PW2, is also in the very same lines of PW2. It
is discernible from his evidence that on reaching the spot, he had
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seen the victim sitting crouching and the first accused hitting him
using the chain of a saw machine (MO1). The second and the
third accused were also present at that time. Now coming to the
evidence of PW4, his evidence is also to the effect that when he
reached the spot along with PW2 and PW3, he saw the first
accused hitting the deceased with the chain of a saw machine
and the second and the third accused standing nearby. It can
thus be seen that evidence of these witnesses are consistent and
supportive of each other and reveal that it is the first accused,
who had hit the deceased with MO1 and that the other accused
were standing nearby. Even though these witnesses have been
cross examined in extenso, their evidence on this score remains
credible and cogent.
21 It is also perspicuous from the evidence of these
witnesses that no overt acts have been committed by the second
and the third accused at the relevant time. These witnesses also
did not speak about accused Nos.2 and 3 possessing any sort of
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weapons. PW3 specifically stated that he did not notice the
second and third accused possessing weapons and also that he
had not seen who was possessing the sword. In short, the afore
evidence of the eye witnesses, shows that none of them have
seen the second and third accused possessing any weapons or
committing any overt acts in the crime scene. At this juncture,
we would also take note of the fact that MO2 has been identified
and marked by the trial court through PW3 & PW4 as the weapon
shown to them by the police and not as one identified as a
weapon of offence.The afore discussion leads us to conclude that
there is absolutely no substantive evidence to link any of the
accused with MO2 sword and to prove that the second and third
accused possessed weapons and attacked the deceased.
22. Moving further, it is to be seen that the prosecution is
also heavily relying upon the recovery of MO1 and MO2 on the
basis of the alleged confession given by the accused. The
evidence of PW20 is to the effect that after arresting accused
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Nos. 1 and 2, on the basis of the disclosure statements given by
them, he had accompanied them and recovered MO1 and MO2
after preparing Exts.P3 and P14 mahazars. But, the evidence on
record goes to show that the prosecution has not proved the
exact information received from the accused which led to the
alleged recovery.PW20 has not specifically deposed the exact
information he thus received from both the accused which led
him to recover the weapons. It is true that PW20 has stated that
the relevant portion of the confessions have been recorded by
him in the mahazars as Exts.P3(a) and P14(a). But, it is a settled
law that mere marking of the relevant portion of the statement
will not tantamount to proof of the same and the investigating
officer is bound to depose the exact information he had received
from the accused. The statement which is admissible under
Section 27 is the one which is the information leading to
discovery. What is admissible is thus the information and the
same has to be proved as per law. In other words, the exact
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information given by the accused while in custody, which led to
the recovery, has to be proved and therefore it is necessary that
the information given should be recorded and proved and if not
recorded, the exact information must be adduced through
evidence.(See Bodhiraj v. State of J & K[(2002) 8 SCC 45],
Babu Sahebgouda Rudragoudar v. State of Karnataka
[2024 (8) SCC 149] and Ramanand v. State of U.P.(2022
SCC OnLine SC 1396). In the present case, in the absence of
PW20 speaking about the exact information he thus received
from both the accused, we are of the view that the prosecution
has not proved the information received from the accused leading
to the recovery. This in turn means that no reliance can be placed
upon the circumstances of recovery of MO1 and MO2.
23. Be that as it may, it is also a settled law that even if the
recovery of weapon used is not established or proved, the same
itself is not a ground to acquit the accused when there is direct
evidence of the eye witnesses, which are reliable and
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trustworthy. A conviction can be based on the ocular evidence of
the injured or the eye witnesses, even if the recovery was not
proved properly. (See State through Inspector of Police v.
Laly @ Manikandan (2022 SCC OnLine SC 1424), Brahm
Swaroop v. State of U.P. [(2011)6 SCC 288] and Aji v.
State of Kerala [2024 KHC 7335].In the present case, as
stated earlier, all the eyewitnesses in this case ie; PW 2 to PW4
have in one voice, specifically stated about the first accused
attacking the deceased using MO1 and have positively identified
it. There is nothing in their evidence, which would enable this
Court to disbelieve them on this aspect and if so, we are of the
view that even though the recovery is faulty, the same is not a
ground to throw the prosecution case aboard.
24. Moving further, the evidence on record goes to show
that even though no blood was detected in the dresses worn by
the second and third accused at the relevant time, (MO5, MO6,
MO10 and MO11), blood was found in the dresses worn by the
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first accused at the relevant time (MO3 & MO4). The evidence of
PW20 coupled with the evidence of PW9 and Ext.P5 goes to show
that the dresses worn by the first accused (MO3 & MO4) were
seized by PW20 on 12/7/2010. The evidence of PW12 coupled
with Ext.P8 goes to show that when MO3 and MO4, which are
item Nos. 5 & 6 respectively, were examined by her, it contained
blood, even though not sufficient for determining the origin and
group. It is also discernible from the evidence of PW12 coupled
with Ext.P8 that, MO1 which is item No.15 contained blood stains
of human origin, even though the blood group could not be
ascertained. The afore evidence also corroborates with the
evidence of the eye witnesses and lends much support to the
prosecution version that the first accused has brutally attacked
the deceased using MO1. It is true that the evidence of PW12
would go to show that blood was also detected in MO2 sword.
But, in the absence of substantive evidence as to who and in
what manner this weapon has been used, we are of the view that
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no much relevance can be attached to the same.
25. Coming to the contention of the appellants regarding
the identification of the accused by the eye witnesses in the
absence of light, we are of the considered view that there is no
merit in it. It is true that both PW2 and PW4 have spoken to
about the presence of light emanating from the houses and the
electric post nearby. It is also true that the defence has
successfully brought out this omission in the statement of these
witnesses, which according to us, is material. At this juncture, we
will also take note of the evidence of PW5 to the effect that at the
time when he reached the place, there was no light available.
But, the evidence of PW2 to PW4 and PW15 would go to show
that all the eyewitnesses in this case are very much familiar and
acquainted with the accused and that accused Nos. 1 and 2 are
even the employees of PW4. Further, the evidence of these
witnesses would go to show that on reaching the spot they had
seen the accused in close quarters and that PW4 and Nisam
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(CW2) had even intervened and prevented the first accused from
attacking the victim. Further, it is to be seen that there is no
substantial challenge to the evidence of these witnesses on this
aspect and their evidence remains credible and cogent. In such
circumstances, even in the absence of any light in the place of
occurrence, we are inclined to act upon the evidence of these
witnesses identifying the accused in the place of occurrence.
26. Coming to the contention of the learned counsel for the
appellants that the evidence of PW5 would reveal that the
deceased has given a statement to the doctor inculpating the
henchmen of Biju (PW4) as his assailants and that the same is
fatal to the prosecution case, we are of the considered view that
there is no merit in it. It is true that PW5 has given evidence
which is to the effect that he had heard the deceased telling the
doctor that it is PW4's men who had attacked him and the doctor
recording the same. But, it is to be taken note that PW5 has not
stated that he had heard the deceased mentioning the names of
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anyone to the doctor. As stated earlier, it has come out in the
evidence of PW2 and PW4 that both the first and second accused
are the employees of PW4 (like PW2 and PW3) and if so, the
alleged statement given by the deceased cannot be stretched to
an extent / interpreted to mean and include persons other than
the accused, as contended by the learned counsel for the
appellants/accused.
27. Coming to the next contention of the appellants that the
prosecution has suppressed material evidence by not examining
Rajendran (CW6) who was all along with the deceased after the
incident, again we are of the considered view that there is no
merit in it. First of all, it is to be taken note that admittedly CW6
was not present at the time of occurrence and has joined the
deceased only from Safa hospital to the Medical College hospital.
Secondly, it is to be seen that Rajendran has been arrayed as a
witness by the prosecution, only to prove the events which
transpired before the incident, while transporting the deceased to
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the Medical College hospital, and the information he gathered
after the incident. At this juncture, we will also take note of the
evidence of PW15, which is to the effect that the deceased has
given a statement to CW6, inculpating the accused herein, while
being taken in the ambulance to the hospital and if so, in any
circumstance, it cannot be said that the non examination of CW6
was for the purpose of suppressing the material evidence in
favour of the accused. Further in the present case, the
prosecution has adduced credible and cogent evidence of the eye
witnesses and other witnesses to prove the commission of the
crime and in such circumstances, we are of the view that the non
examination of CW6 is not fatal.
28. As found earlier, even though the prosecution has
adduced convincing evidence to prove the involvement of the
first accused in this crime and his overt acts using MO1, no
credible evidence has been let in to prove that the second and
the third accused were possessing weapons or have attacked the
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deceased at the relevant time. Further, it is also revealed from
evidence that no blood stains were found in the dresses worn by
them at the relevant time and the recovery of MO2 at the
instance of the second accused is faulty. Now the issue, which
pirouettes, is whether the second and third accused can be roped
in with the aid of Section 34 IPC. The ingredients of common
intention to be proved are : (a)There is a common intention on
the part of more than one person to commit a particular crime
and (b) the crime was actually committed by them in furtherance
of that common intention. The essence of liability under Section
34 is simultaneous and conscious mind of the person
participating in the criminal action to bring about a particular
result. The phrase 'common intention' implies a prearranged plan
and acting in concert pursuant to the plan. The 'common
intention' can be prior to the commission of the offence in point
of time and can also develop on the spot as between a number of
persons.(See Mewa Ram v. State of Rajasthan[(2017) 11
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SCC 272] and Abdul Sayeed v. State of Madhya Pradesh
[(2010) 10 SCC 259]. In the present case, the prosecution has
not let in any credible evidence to show that there was a pre-
concert or meeting of minds between the accused at any point of
time. There is also nothing in evidence to show that the second
and the third accused have acted in concert to any pre-arranged
plan. In other words, there is nothing even to infer that these
accused have participated and engaged themselves in
furtherance of the common intention which might be of a pre-
arranged plan or one manifested at the spur of a moment in the
course of commission of the offence. Further, evidence is also
lacking to prove that the second and third accused nurtured any
animosity with the deceased. Ergo, considering all the afore facts
and circumstances, we are of the view that the second and the
third accused cannot be roped in this case by invoking Section 34
of IPC.
29. The upshot of the afore discussions on evidence is that,
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even though the prosecution has proved convincingly that the
first accused has attacked deceased Anoop with MO1 inflicting
fatal injuries, they have failed to prove beyond reasonable doubt
that second and the third accused were also involved in the
crime. The trial court has erred in appreciating the evidence in a
proper perspective and has failed in reaching a correct conclusion
as regards the second and the third accused. The appellant in
Crl.Appeal No.1092/2018 could not bring out any material which
would enable this Court to interfere with the conclusion of guilt
reached by the trial court against him. If so, we are of the view
that while sustaining the conviction of the first accused (appellant
in Crl.Appeal No.1092/2018), the conviction and sentence, as
against the second and the third accused (appellants in
Crl.Appeal Nos. 1217/2018 & 406/2018 respectively) are to be
set aside.
30. Now coming to the sentence imposed on the first
accused, as stated earlier, the trial court has sentenced him to
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undergo life imprisonment with a direction that he shall serve a
jail sentence of 25 years without any remission and to pay fine of
Rs.50,000/- under Section 302 r/w section 34 IPC. It is a settled
law, as held by the Apex Court in the decision in Union of India
v. V.Sriharan @ Murugan [2016 (7) SCC 1] and by the Full
Bench of this Court in State of Kerala v. Unni [2013 (1) KHC
546] and in the decision in Tony @ Thomas v. State of Kerala
(2021 (6) KHC 681), that a Session Court has no power to
sentence the accused to undergo imprisonment for life with a
rider that the accused shall not be released for a period of 20
years and that such special category of sentence can only be
imposed by the High Court/Supreme Court. If so, we have no
hesitation in finding that the direction given by the Session Court
that the first accused has to serve a jail sentence of 25 years
without any remission while undergoing life imprisonment cannot
be sustained.
In the result:
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1) Crl.Appeal No.1092/2018 is allowed in part and the sentence
imposed on the appellant/accused No.1 is modified and he is
sentenced to undergo life imprisonment and to pay a fine of
Rs.50,000/- under Section 302 IPC.
2) Crl.Appeals Nos.1217/2018 & 406/2018 will stand allowed and
the conviction and sentence imposed against the appellants
(second and the third accused) under section 302 r/w 34 I.P.C.
are set aside and they are set at liberty.
Sd/-
RAJA VIJAYARAGHAVAN V
Judge
Sd/-
P.V.BALAKRISHNAN
Judge
dpk
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PETITIONER EXHIBITS
EXHIBIT P1 THE CERTIFIED COPY OF THE JUDGMENT IN
S.C. NO. 327/2011 OF THE COURT OF
SESSIONS JUDGE, KOLLAM, DATED
21/12/2017.
